Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct. No. CC963839
DUFFY, J.
Defendant John Mario Lugo was convicted by plea of one count of inflicting injury on a cohabitant resulting in corporal injury in violation of Penal Code section 273.5 (count 1) and one count of felony false imprisonment in violation of section 236 (count 2). He also admitted one prior strike within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 and one prison prior within the meaning of section 667.5, subdivision (b). After the court denied his request to dismiss the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, defendant was sentenced per a plea bargain to four years in prison for count 1 and 32 months for count 2, to be served concurrently. The court struck the additional consecutive one-year term for the prison prior under section 1385 and also imposed various fines and fees and ordered the payment of restitution. Defendant appeals and we affirm.
Further statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF THE CASE
We take the facts from the transcript of the preliminary hearing, the probation report, and defendant’s Romero motion.
In December 2009, defendant was romantically involved and living with the victim, Cheri Candia. They had known each other approximately four months and had moved around a lot, staying with various relatives. They sometimes used drugs together, as defendant had historically done from a young age. According to defendant, about a week before Christmas, he had decided that he wanted to quit using drugs and start working regularly and Candia appeared supportive. But in the five days before Christmas, she was frequently using methamphetamine. On Christmas Eve, Candia got high by herself and then with her sister while doing laundry at her sister’s house. Defendant became upset and left the house. Candia used methamphetamine with her sister all that night.
Defendant and Candia communicated through text messages throughout the night. At around 11:00 on Christmas morning, she asked him to pick her up. Defendant drove to Candia’s sister’s house and Candia, who was still “really high” got in the car with him. Defendant was upset with Candia and called her “slut, ” though she did not really understand why and thought he was accusing her of being unfaithful. She was not afraid of defendant but she did not want to be around him because he was angry. Though it is not clear from the record just what precipitated it, their argument escalated while they were driving and defendant hit Candia in the nose with the back of his hand. Her nose began to bleed. A witness observed them fighting in the car and said that defendant was driving erratically. Candia tried to get out of the car while it was moving, but defendant pulled her back in. Candia reported that he then shoved her head into the car’s gear shift.
Defendant soon slowed down the car as they neared his cousin’s house. Another witness reported seeing defendant kick Candia several times while she was still in the car and then pull her out of the car by her hair. Candia ran away but defendant chased her. She fell to the ground and defendant fell on top of her. Candia was sore and had multiple bruises and scrapes from the whole incident.
When police arrived at defendant’s house, they found him hiding in a shed in the backyard. Police arrested both defendant and Candia, as both were the subject of outstanding warrants.
II. Procedural Background
Defendant was charged by felony complaint and following a preliminary hearing, he was bound over for trial. A first amended information alleged that he had inflicted corporal injury on a cohabitant in violation of section 273.5, subdivision (a) and had committed felony false imprisonment in violation of sections 236 and 237. The amended information also alleged that defendant had a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (assault with a deadly weapon and with personal infliction of great bodily injury) and one prison prior within the meaning of section 667.5, subdivision (b) (possession of methamphetamine for sale).
On May 5, 2010, defendant waived his rights and pleaded guilty to both counts and admitted the enhancement allegations. He did so on the condition that he would be sentenced to serve no more than four years in prison and that the trial court would consider dismissal of the prior strike in the interests of justice under section 1385 and Romero. The trial court found defendant’s waiver and plea to have been intelligent, free and voluntary and further found a factual basis for the plea in the preliminary hearing transcript.
Defendant filed a Romero motion, which the court denied, concluding that the case fell within rather than without the spirit of the Three Strikes law and thus was not appropriate for the exercise of judicial discretion under section 1385. The court sentenced defendant to the mitigated terms of four years on count one and 32 months on count 2, concurrent, with credit for time served. And, consistently with the plea bargain, the court exercised its discretion under section 1385 to strike the additional consecutive one year term for the prison prior. The court also imposed the usual fines and fees and ordered defendant to pay the victim $1,600 in restitution.
Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief that stated the case and the facts but raised no specific issues and requested this court to conduct an independent review under People v. Wende (1979) 25 Cal.3d 436. We notified defendant of his right to submit written argument on his own behalf within 30 days. This period has elapsed and we have received no written argument from defendant.
We have reviewed the entire record under Wende and People v. Kelly (2006) 40 Cal.4th 106. Based upon this review, we have concluded that there is no arguable issue on appeal.
DISPOSITION
The judment is affirmed.
WE CONCUR. Rushing, P. J., Grover, J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.